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War Aims Matter: Keeping Jus Contra Bellum Restrictive While Requiring the Articulation of the Goals of the Use of Force Jens Iverson

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University of Minnesota Law School Scholarship Repository Minnesota Journal of International Law 2018 War Aims Matter: Keeping Jus Contra Bellum Restrictive While Requiring the Articulation of the Goals of the Use of Force Jens Iverson Follow this and additional works at: https://scholarship.law.umn.edu/mjil Part of the Law Commons Recommended Citation Iverson, Jens, "War Aims Matter: Keeping Jus Contra Bellum Restrictive While Requiring the Articulation of the Goals of the Use of Force" (2018). Minnesota Journal of International Law. 356. https://scholarship.law.umn.edu/mjil/356 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Journal of International Law collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Symposium Article War Aims Matter: Keeping Jus Contra Bellum Restrictive While Requiring the Articulation of the Goals of the Use of Force Jens Iverson Abstract Should planned humanitarian interventions be required to have a well-articulated plan for peace? What has been lost by reducing the principal justification for the use of force to self- defense? This article explains why a full articulation of the goals of the use of force should be required, but why this explanation of desired ends should not entail a loosening of the limited legal justifications for the use of force. Jus post bellum is focused on the successful transition from armed conflict to peace. The success of this effort begins with the formation and declaration of war aims, not with steps taken after cessation of hostilities. A review of recent international armed conflicts in Kuwait, Kosovo, Afghanistan, Iraq, Libya, Ukraine, and elsewhere, underscores the connection between the articulation of war aims and the quality of the resulting peace. The customary law on declarations of war and peacemaking are examined, as well as current law rooted in the United Nations Charter. The articulation of war aims matters not only for jus post bellum, but for the prevention of war and for jus in bello as well. Assistant Professor of Law, Ph.D., J.D., Grotius Centre for International Legal Studies, Law Faculty, Leiden University. This work is presented as a preliminary version of the keynote address that was given at the November 2017 Symposium, Jus Post Bellum: Justice After the War, at the University of Minnesota Law School which focused on transitional justice. Feedback from the esteemed faculty of the Grotius Centre for International Legal Studies has proven invaluable, including feedback from Carsten Stahn, Larissa van den Herik, Eric de Brabandere, Joe Powderly, Niels Blokker, Kees Waaldijk, Catherine Harwood, Gelijn Molier, Cale Davis, and Giulia Pinzauti. Thanks also to Katherine Orlovsky and to the Editors and Staff at the Minnesota Journal of International Law for their kind assistance and patience. All errors are the responsibility of the author. 67 68 MINNESOTA JOURNAL OF INT'L LAW [Vol. 27:1 An honest discussion of what is required to create the desired situation post bellum can generate internal and allied pressure to avoid the use of force in the first place. A clear explanation of the aims of the use of force may also improve rules of engagement so that specific targeting decisions and other decisions prioritize the construction of a just and sustainable peace. A more forthright and comprehensive formulation and disclosure of war aims should be demanded from the outset and throughout any ongoing series of decisions to use force. I. INTRODUCTION A. THE BRIDGE Imagine targeting a bridge. Destroying the bridge provides a military advantage, and it can be done in a manner that no one is likely to be hurt or killed, but destroying the bridge may make the just and sustainable ending of the armed conflict more difficult.1 The bridge literally and historically connects two communities. Its destruction will cause enduring resentment. How do we make the decision whether to destroy the bridge? The jus in bello2 proportionality assessment is notoriously difficult to make—how exactly does one compare the apples of military necessity to the oranges of civilian lives and suffering? If destroying a bridge would be part of the first responsive act that would start armed conflict between a state or armed group, how should the jus ad bellum proportionality requirement be analyzed? Should the assessment of the value of the bridge be limited to its intrinsic value (e.g., price for replacement, cultural value, suffering caused by its destruction)? Or should there be a particular consideration of its role in maximizing the possibility of a successful transition to a just and sustainable peace? This article assesses broad themes and is based in part on a grand tradition, the just war tradition, that spans many 1. See e.g., Prosecutor v. Prlić et al., Case no. IT-04-74-T, Judgment (Int’l Crim. Trib. for the Former Yugoslavia May 29, 2013), http://www.icty.org/ case/prlic/4 (describing Mostar Bridge which arguably fits this model, but not implying any criminal liability attributable to specific instances). 2. During much of the twentieth century, the law applicable to armed conflict was typically divided into two parts, the first governing resort to force (jus ad bellum), and the second the conduct within the conflict (jus in bello). More recently, jus post bellum has often been included to make a tripartite analysis. 2018] WAR AIMS MATTER 69 centuries and countless wars, but it is useful to begin with this limited hypothetical. There are numbers of specific criteria that can be applied to the firing of a single mortar—whether the order to fire violates international humanitarian law; whether the order to fire violates international criminal law; whether it is an act of aggression; whether such an order is so manifestly illegal it must be disobeyed; whether it follows the domestic law binding on the actors; whether it follows the terms of engagement; whether it is unethical; whether it is good policy; whether there is sufficient warning to civilians; whether it is properly timed; whether the method minimizes civilian harm; whether there are alternatives; whether the subsequent conduct minimizes civilian harm and maximizes war aims. But at the end of any assessment, the bridge will either remain standing or tumble into the gorge. Stacked against the concrete realities of the use of force, discussing the honesty surrounding war aims may seem trivial. But changing how war is discussed before the first mortar is fired may not only prevent the use of armed force sometimes, but also change how armed conflict is fought, and how peace is built. This work is as much about the public, forthright analysis (or lack thereof) that surrounds such a targeting decision as it is about the direct, classic analysis of the legality of the resulting destruction. Should the entity targeting the bridge be required to declare the rationale justifying the use of force? Most analyses of conduct such as this rightly focus on the conduct itself, not the public proclamations or justifications by those who decide whether and how to use force. Jus ad bellum and jus in bello analyses are generally objective evaluations of conduct. The existence of an armed conflict typically does not depend on the public statements of states.3 States may not declare war, or may actively deny the existence of an armed conflict, but nonetheless be in an armed conflict based on an objective analysis of relevant 3. See Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War art. 2, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III] (granting applicability of the Conventions even if a state of war is not recognized by a party to the armed conflict); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. 70 MINNESOTA JOURNAL OF INT'L LAW [Vol. 27:1 conduct. That said, this work will argue that in order to better restrain the general use of force, to wage armed conflict specifically, and more importantly, to improve any eventual transition from armed conflict to peace, a more forthright and comprehensive formulation and disclosure of war aims should be demanded from the outset and throughout any ongoing series of decisions to use force. B. INTRODUCING THE CONCEPTS How would one normally address the legal questions surrounding the potential use of armed force against a bridge as described above? The answer is not with the goals of the use of force, but with the legal justification for the use of force. Regardless of what is declared as the ultimate goal, an international or military lawyer is likely to ask first whether or not destroying the bridge is objectively justified by self-defense. In contemporary law, the legality of the use of armed force often comes down to, in one sense or another, whether it can be justified by self-defense, or in the alternative, whether the United Nations (“U.N.”) Security Council can authorize the action.4 This is most obvious in the interaction between Articles 2.4 and 51 of the UN Charter5 in the case of the use of force by one state in response to an armed attack by another state, but it informs all discussions of the use of force.
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